Lost Will Presumption & Modern Technology

Introduction: The Original Will Requirement

Did you Know an Original Paper Will is required to Probate a Last Will & Testament? Oral wills are generally unenforceable. Copies of a will are also generally not acceptable.

A person who dies (“Decedent”) without a will is said to have died “intestate”, or without a last will and testament. The laws of intestate succession would apply to a person who dies without a will with the Decedent’s estate being distributed to the Decedent’s intestate heirs which simply translated would be to the Decedent’s applicable next of kin in the order of priority by legal relations such as spouse (if applicable), children (if applicable), grandchildren (if appliable), parents (if applicable), siblings (if applicable), etc.

Many people create wills to pass on their estate to their chosen heirs. A will is a legal document that must be executed under certain formal conditions and is meant to convey the last wishes and property of the person (“Testator”) making the last will and testament. A will is a writing that complies with the formal requirements for a last will and testament.

Formal Requirements for a Valid Will in California

So, what is a required for a valid will in California?

Formalities are required for valid will in California.

Types of Wills in California

What are the types of wills in California?

1. Witnessed Will: Basically, a will is a witnessed will when the will is witnessed and signed by the person making the will with two disinterested parties who witness the execution of the Testator’s will and sign the will along with the Testator.
2. Holographic Will: Basically, a will (not witnessed) that has the material terms of the will in the Testator’s handwriting and signed by the Testator.

Modern Technology and the Probate System

Will the probate law catch up with modern technology widely utilized and accepted?

More and more people are going paperless with their important documents. We frequently use copies and electronic records nowadays. We live in a digital world and digital records are now the norm. People save their important records electronically using files formats like .pdfs, .doc., .tiffs, .jpg, photocopies, video, etc. Paper is almost a thing of the past. People save their important (and legal) documents on their networks, computers, and more frequently in the cloud. People electronically sign important legal documents nowadays. An authenticated email request can be sent for an electronic signature, binding the party signing the electronic documents. E-signatures are widely accepted today and are legally binding. It wasn’t always that way. But that is a blog for another day.

Can you imagine video Last Will & Testaments or DocuSign Last Will & Testaments? The technology is widely used and readily accessible in our modern-day society. I think I have seen video wills in a movie at some point. The legal process has not caught up with the current technology. The probate legal process has a long history that goes way back before California was a state and the US was a country. The passing of estates has been around for thousands of years. So, you can see why the law has not caught up to the technology. There are formal traditions and rituals that have a very long history, whereas the digital revolution is relatively new. One day we may see video last Will & Testaments admitted to probate or Docusign Last Will & Testaments.

The Original Will Requirement in Probate

The Original Will is required and must be deposited with the court to be admitted to probate. Generally speaking, even in litigation, you can use a copy of document (subject to the other side stipulating to its authenticity). People use copies of documents all the time and rarely use the original document. However, there is one document where you still need the “Original” paper document. That document is your last will and testament. Without the original will the “Lost Will Presumption” would apply.

The Lost Will Presumption

Probate Code Section 6124

California Probate Code Section 6124 States:

“If the testator’s will was last in the testator’s possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.”

Let’s break that down:

If no “Original” will is found, the will is presumed destroyed, with an intent to revoke the will by the Testator. Probate Code section 6124 establishes a presumption concerning lost wills. The presumption is the lost will was destroyed and revoked. This is called the lost will presumption.

Accordingly, if the original executed will is unlocatable the lost will presumption applies, and the will is presumed revoked. As a result, the property will pass via intestacy in probate or spousal property petition, via a small estate affidavit, through a trust, or through another legal process with the court as the case may be.

Case Law Supporting the Lost Will Presumption

Case law supports Probate Code 6124’s lost will statutory presumption. In Lauermann v. Superior Court the court held under statute providing that when neither testator’s will nor a duplicate original of the will can be found after the testator’s death, it is presumed that the testator destroyed the will with intent to revoke it, the term “duplicate original,” does not include a photocopy not personally signed by the testator and the witnesses. Lauermann v. Superior Court, 127 Cal.App.4th 1327 (2005).

A presumption affecting the burden of producing evidence requires the trier of fact to assume the existence of the presumed fact unless contrary evidence is introduced, but once evidence negating the presumed fact is presented, the trier of fact must decide the case under the applicable burden of proof without regard to the presumption simply by weighing the evidence. Estate of Trikha, 219 Cal.App.4th 791 (2013). At this point an evidence code analysis is required, which is beyond the scope of this blog.

What If the Original Will Cannot Be Found?

What if you can’t find the original last will and testament? What about a copy?

The Lost Will Presumption applies, and the will was presumed revoked. A petitioner could seek to admit a copy of the will to be admitted to probate. They would have to do so to the court’s satisfaction to rebut the lost will presumption.

There are ways to admit a lost will since the presumption is rebuttable, For example, Probate Code Section 8223 permits the proving of a lost or destroyed will. The code requires the petition for probate of the will to include a written statement of the testamentary words or their substance. If the will is proved, the provisions of the will shall be set forth in the order admitting the will to probate. The question whether a document is clearly and distinctly proved to be a true copy of an original will is one of fact for the trial court. In re Moramarco’s Estate, 86 Cal.App.2d 326 (1948).

Will Contests and Litigation Risks

If the will is being contested, the matter may not be easily resolved. The matter could have various heirs litigating the validity of the will to be admitted to probate. Then it’s a question of does the court admit the copy of the will to probate? The evidence at the trial on the validity of the will may be how the matter is resolved. Hopefully not, but this is one example of a will contest. There are other ways to contest a will for example (1) lack of capacity, (2) undue influence, etc.

What Must Be Done With the Original Will?

What are you required to do with the “Original” will?

If there is a will, the ORIGINAL Last Will and Testament must be deposited with the court before it can be admitted to Probate. The party seeking to admit the will to Probate is the Petitioner. The Petitioner is usually seeking to be appointed as the personal representative of the deceased (“Decedent”) to act on behalf of the Decedent’s Estate.

If the petitioner is granted the authority by the court, Testamentary Letters will issue from the court granting the petitioner the authority to act on behalf of the Decedent’s Estate as the “Personal Representative” of the estate.

Holographic Wills

What about holographic wills?

Holographic Wills are admissible in a California.

Probate Code section 8222 states:

“A holographic will may be proved in the same manner as other writings.”

What is a holographic will?

Probate Code Section 6111 states:

Basically, a holographic will is a will that is not witnessed but the material terms of the will are in the Testator’s handwriting and signed by the testator. The Original holographic Will is still required to admit the Will to probate.

Again, an Original Will is required to be probated in the California Courts. So, the court will verify the will is the original will even if its holographic. The will must be deposited with the court with the petition to probate the will. If the court admits the copy to probate an order would issue and testamentary letters would issue authorizing the admission of the copy of the will wherein Testamentary Letters will Issue authorizing a personal representative to act on behalf of the estate. But if the Petitioner does not have the original holographic will, the likelihood of the admission of the copy is reduced absent rebutting the lost will presumption.

Historical Background and Illustrative Cases

Some interesting information I discovered while researching this blog.

The presumption has been around long before California was a state with its roots in English common law.

Agatha Christie based a novel on the issue.
https://en.wikipedia.org/wiki/Poirot_Investigates#The_Case_of_the_Missing_Will

There was also a famous case(s) that were the longest running civil lawsuits in America. A number of the suits were litigated by some of the most famous lawyers in the country. Litigators like Daniel Webster, John A. Campbell, Francis Scott Key and Reverdy Johnson all ensured that her case remained in the front pages of the news. (citation Wikipedia).
https://en.wikipedia.org/wiki/Myra_Clark_Gaines

The case demonstrates that the presumption of a lost will’s revocation can be overcome with sufficient evidence of its existence and a lack of intent to revoke by the testator.

Conclusion

Conclusion keep your original will in a safe place because it will be required if you want your last will and testament admitted to probate. That is until we see video last will and testaments become the norm under a future law that accounts for the technological developments in the digital age. The probate laws go way back and like most laws are behind where the widely utilized and accepted technology currently exists.